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concluding prior verbal abuse of child "was strong evidence on the issue of defendant's intent"
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No. 5-835 / 04-1479
Filed February 15, 2006
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
Defendant, James Tate, Jr. appeals his conviction for first-degree murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrell Mullins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Myers, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Defendant, James Tate, Jr. appeals his conviction for first-degree murder of his three-and-one-half-month-old son. The child was injured while in defendant's sole care for the evening. On appeal defendant argues: (1) improper evidence of his prior bad acts was admitted; (2) the prosecutor improperly alleged that defendant was a liar; (3) the district court abused its discretion by not allowing certain Department of Human Services reports to be admitted into evidence; (4) the district court erred in instructing the jury; (5) a witness improperly commented on defendant's credibility; and (6) the district court applied the wrong standard to defendant's motion for a new trial. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
A trial information was filed charging James Tate, Jr. with first-degree murder in violation of Iowa Code section 707.2 (2001) for the death of his infant son. A jury trial commenced on April 20, 2004. The jury was unable to reach a verdict and a mistrial was declared. A second jury trial ended with defendant being convicted of first-degree murder. Defendant was sentenced to life in prison without the possibility of parole.
The evidence at trial indicates that Skylar Tate was three and one-half months old when he died on January 15, 2003 of brain injuries. Defendant had been living with Skylar's mother, Maggie Tucker, Skylar, and Maggie's other son, Dillon. On December 10, 2002, Maggie left Skylar and Dillon in defendant's care. When she returned home, she observed Skylar had a "goose-egg" on his head and later observed that a popping sound was coming from his chest. Maggie took Skylar to the emergency room where she was told by the treating medical personnel that Skylar was uninjured.
On January 12, 2003, Maggie took Dillon to the hospital for medical care and defendant stayed at home to care for Skylar. During that evening, defendant called his father, who lived nearby, and reported that Skylar was not breathing. Defendant's father instructed his wife to call 911 and he immediately went to defendant's apartment. Defendant's father reported that Skylar was lying on the floor when he arrived and that Skylar had a rapid heart rate and was not breathing. Defendant's father performed CPR on the baby. Paramedics arrived shortly thereafter and they took over Skylar's care. Skylar died three days later.
The primary issue at trial was the determination as to the cause of Skylar's injuries and death. At trial, the defense set forth the theory that Skylar's injuries were caused by a short-distance fall, not intentional trauma inflicted by defendant.
An autopsy revealed at least three impact injuries to the front, left, and right sides of Skylar's head that caused three areas of brain hemorrhaging and a non-displaced fracture to the left parietal bone (the bone that forms the side and top of the head). Skylar also had hemorrhaging in his retinas and optic nerves. Additionally, Skylar had a type of fracture to his leg bone that is generally caused by forceful twisting or pulling of the leg. The autopsy further revealed that Skylar had sustained compression-type fractures to four ribs that were approximately one month old, as one rib had completely healed and the others were healing. These rib injuries occurred close in time to December 10, 2002, when Skylar was left in the sole care of defendant for the evening. This suggests that Skylar was misdiagnosed when he was taken to the hospital by Maggie after she returned home that evening.
A number of doctors testified at trial about the cause Skylar's injuries. Assistant State Medical Examiner, Dr. Dennis Klein, who performed the autopsy on the body, testified that he believed the injuries suffered by Skylar were abusive and not accidental injuries. However, Dr. Klein did concede that there is some medical evidence that short-distance falls can, on rare occasions, cause serious head injuries and death.
Dr. Paul McCaughey, who initially treated Skylar, testified that he did not believe that the major injuries that Skylar suffered could have been caused by an accidental fall. However, Dr. McCaughey did disclose that, while he thought it was highly unlikely that a child could sustain a fatal head injury from a short-distance fall, he had read studies describing such instances.
Five other doctors that either treated Skylar or studied the case testified for the State. All of these doctors testified that they did not believe that Skylar's injuries were the result of a short-distance fall. The testimony also indicated the injuries suffered by Skylar could not have been caused by only shaking. However, these doctors did indicate that they could not completely foreclose the possibility the injuries were caused by a short-distance fall.
Dr. Janice Ophoven testified for the defense. Dr. Ophoven agreed that the likely cause of Skylar's injuries was non-accidental blunt force trauma to the head. However, Dr. Ophoven did testify that it was possible Skylar's injuries could have been caused by a short distance fall onto an unyielding surface.
On appeal of his conviction, defendant makes numerous claims of error. Defendant argues: (1) improper evidence of his prior bad acts was admitted at trial; (2) the prosecutor, in closing argument, essentially told the jury that defendant was a liar in violation of State v. Graves, 668 N.W.2d 860, 875 (Iowa 2003); (3) the district court abused its discretion by not allowing Department of Human Services reports involving abuse allegations against Skylar's other caregivers to be admitted into evidence; (4) the district court erred in instructing the jury with regard to malice aforethought; (5) a witness improperly commented on defendant's credibility and the district court erred in not sustaining defendant's objection; and (6) the district court applied the wrong standard to defendant's motion for a new trial.
As to the final issue, the motion for a new trial, on December 8, 2005 we remanded to the district court to apply the weight-of-the-evidence standard set forth in State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). On December 29, 2005 the district court overruled defendant's motion for a new trial while applying the weight-of-the-evidence standard set forth in Ellis. II. ANALYSIS A. Evidence of Defendant Swearing at the Child.
On appeal, defendant's first allegation of error is that the district court erred in overruling his motion in limine to prohibit the State from introducing evidence of defendant's verbally abusive language directed at Skylar as being irrelevant and prejudicial. Specifically, testimony that defendant had yelled at Skylar, told Skylar to "shut the fuck up," and called Skylar a "little fucker" was admitted into evidence and reiterated by the State in closing argument.
The district court employs a two-part test to determine the admissibility of prior bad acts evidence. State v. Castaneda , 621 N.W.2d 435, 440 (Iowa 2001). First, the court decides whether the evidence is relevant. Id. If the evidence is not relevant it is inadmissible. Id. If the evidence is relevant, "the court must then decide whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice." Id. The district court exercises its discretion in applying this test and we will only reverse for clear abuse of discretion. Id.
1. Relevancy.
The prior bad acts evidence must be relevant to a legitimate factual issue of dispute. State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004). In the present case, the State argues the evidence of defendant's swearing at the child was relevant to the issue of intent; specifically, whether defendant acted maliciously. The essential question we must answer is whether "the prior-misconduct evidence [was] relevant to the defendant's intent for a reason other than to show that a person guilty of such misconduct would have a propensity to commit [the charged crime]?" Id. We conclude it was. The defense set forth the theory at trial that defendant accidentally dropped Skylar. Thus, the intent of defendant was at issue and his attitude toward the victim was relevant to determine his intent. Id. at 125.
2. Balancing unfair prejudice against probative value.
Defendant's primary argument on appeal is that the evidence of his swearing at the child was unfairly prejudicial and should not have been admitted for that reason.
"Unfair prejudice" is an undue tendency to suggest decisions by the fact finder based on an improper basis, often an emotional one. Of course the whole purpose of evidence is to sway the fact finder toward an outcome that favors one party, so most evidence that damages a party's case is not to be considered unfairly prejudicial. Unfairly prejudicial evidence is evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [which] may cause a jury to base its decision on something other than the established propositions in the case. The appellate court may conclude that "unfair prejudice" occurred because an insufficient effort was made below to avoid the dangers of prejudice, or because the theory on which the evidence was offered was designed to elicit a response from the jurors not justified by the evidence.
State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997) (citations omitted).
In determining whether evidence was unfairly prejudicial we consider the following factors:
(1) the actual need for the evidence in view of the issues and the other available evidence, (2) the strength of the evidence showing that the prior bad acts were committed by the accused, (3) the strength or weakness of the prior bad acts evidence in supporting the issue sought to be proven, and (4) the degree to which the jury will probably be roused by the evidence improperly.
State v. Alderman, 578 N.W.2d 255, 259 (Iowa Ct. App 1998) (citing State v. Howell, 557 N.W.2d 908, 912 (Iowa Ct.App. 1996)).
Upon considering the above elements, we conclude the evidence was not unfairly prejudicial and the district court did not abuse its discretion in admitting the evidence. The evidence went to show defendant's intent. The evidence was strong, as witnesses were consistent in their recollections and defendant admitted to his use of foul language with Skylar. The evidence was helpful in resolving the issue of defendant's intent. Finally, we do not believe the evidence improperly inflamed the jury. The prior bad acts alleged were substantially less brutal than the charged offense; thus, the prior acts would not have roused the jury's sense of horror or instinct to punish. State v. White , 668 N.W.2d 850, 855 (Iowa 2003) (noting that the prior acts were "substantially less brutal" than the charged offense); State v. Rodriquez , 636 N.W.2d 234, 243 (Iowa 2001) (noting that the prior acts were "no more brutal" than the charged offense); State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct.App. 1993) (holding that potential prejudicial effect of subsequent acts evidence was "neutralized by equally reprehensible nature of the charged crime").
B. Ineffective Assistance.
Defendant next argues trial counsel provided ineffective assistance in two instances. Because a claim of ineffective assistanceof counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). To establish an ineffective assistanceof counselclaim, the defendant must show (1) counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999); State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984).
Ineffective assistance claims are generally reserved for postconviction relief actions; however, we will resolve them on a direct appeal of the criminal conviction in two situations:
If the record on appeal shows . . . that the defendant cannot prevail on such a claim as a matter of law, we will affirm the defendant's conviction without preserving the ineffective-assistance-of-counsel claims. Conversely, if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial.
State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004) (citations and quotation marks omitted).
The defendant must show his attorney's performance fell below an objective standard of reasonableness so that the attorney failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both prongs of a claim of ineffective assistance. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). "Because proof of both prongs of this test is required should [a defendant] fail to prove prejudice we need not consider whether trial counsel failed to perform an essential duty." State v. Tejada, 677 N.W.2d 744, 754 (Iowa 2004). Counsel is not ineffective for failing to pursue a meritless issue. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) (citing State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999)).
Defendant's first claim of ineffective assistance is that his counsel should have objected to certain prior bad acts evidence presented by the State. At issue is evidence that showed Skylar suffered fractured ribs approximately one month before his death, and that the rib injuries coincided with the only other time defendant was alone with Skylar. Additionally, Skylar's mother testified that when she returned home on the evening Skylar was in defendant's care, she observed Skylar had "goose-egg" on his head and that a popping sound was coming from his chest. The State emphasized the evidence of the rib fractures in opening and closing arguments.
As discussed above, a two-part test is used to determine the admissibility of prior bad acts evidence. Castaneda , 621 N.W.2d at 440. First, we determine whether the evidence was relevant. Id. Defendant argues the evidence was not relevant, but provides no support for that assertion. We conclude that the evidence was relevant to demonstrate intent. Taylor, 689 N.W.2d at 124.
We must next determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. We apply the factors set out in Alderman, 578 N.W.2d at 259, to make this determination. The intent of defendant was a hotly contested issue at trial. We conclude the evidence at issue wentto establish that element.
We next consider whether there was clear proof defendant committed the prior violent acts. Alderman, 578 N.W.2d at 259. It is not required that the prior act be established beyond a reasonable doubt or be corroborated. Taylor, 689 N.W.2d at 130. "There simply needs to be sufficient proof to `prevent the jury the jury from engaging in speculation or drawing inferences based on mere suspicion.'" Id. We conclude the proof was strong enough to satisfy this test because the rib injuries were close in time to when defendant was charged with the sole care of Skylar, the autopsy revealed that the rib fractures were caused by compression, Skylar's mother immediately took Skylar for treatment after she returned home and believed Skylar to be injured, other family members noticed that Skylar appeared to be injured, and defendant confirmed that Skylar was injured while in his care during his conversation with a detective, even though defendant insisted Skylar was injured when he fell from the couch to the floor.
We next consider the strength or weakness of the prior bad acts evidence in supporting the issue sought to be proven. Our supreme court has asserted, "The most obvious example of the legitimate use of prior-bad-acts evidence is the admission of evidence of a defendant's prior assaults of a victim in a prosecution of the defendant for the subsequent murder of victim." Taylor, 689 N.W.2d at 125. We conclude evidence that defendant had previously injured the victim was strong evidence on the issue of defendant's intent.
Finally, we consider the degree to which the jury will probably be roused by the evidence improperly. We do not believe the evidence improperly inflamed the jury. As we noted with the other prior bad acts evidence discussed above, the prior bad acts alleged were substantially less brutal than the charged offense; thus, the prior acts would not have roused the jury's sense of horror or instinct to punish. White , 668 N.W.2d at 855; Rodriquez , 636 N.W.2d at 243; Larsen, 512 N.W.2d at 808.
The district court did not abuse its discretion in admitting the evidence at issue. Therefore, trial counsel did not have a duty to object to its admission and trial counsel was not ineffective in this regard. Scalise, 660 N.W.2d at 62.
Defendant's next claim of ineffective assistance is that his trial counsel should have objected to the State's closing argument, as he claims the prosecutor implied he was a liar. In closing argument the prosecutor commented on the subject of defendant's apparently changing accounts about what happened on the evening Skylar was injured. Defendant initially told police he found Skylar in his baby swing not breathing, he later told Skylar's aunt Skylar went limp when he was changing his diaper, he later told Skylar's mother Skylar was injured when he was picking Skylar up from his swing and accidentally dropped him on his head. During closing argument, as commentary on defendant's changing story, the prosecutor stated:
And what does common sense and life experiences tell us? What does it tell us about someone when they do something wrong? Some stand up and say, "I did it." Some people are not upfront about the situation. Some don't tell us the complete story. Some flat-out don't tell us the truth.
Pete Rose, "I never bet on baseball." He said that for years. Now what does he tell us? "I bet on baseball, but I didn't bet on the Reds."
Bill Clinton, "I never had sex with that woman." It's not a political comment. It's just something that we're all aware of. We know it happened.
Defendant argues this statement was an improper expression of the prosecutor's personal belief as to defendant's credibility.
The credibility of witnesses is a proper subject for discussion during closing argument. State v. Martens, 521 N.W.2d 768, 772 (Iowa Ct.App. 1994) (citing United States v. Spivey, 859 F.2d 461, 466 (7th Cir. 1988)). A prosecutor may not, however, express or imply his or her personal belief in the truth or falsity of the testimony of a witness (although in this case defendant did not testify and the statements at issue are those he made to various other people subsequent to Skylar's injuries). Id.
Iowa follows the rule that it is improper for a prosecutor to call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments. Notwithstanding this prohibition, a prosecutor is still free "to craft an argument that includes reasonable inferences based on the evidence and . . . when a case turns on which of two conflicting stories is true, [to argue that] certain testimony is not believable."
State v. Graves, 668 N.W.2d 806, 876 (Iowa 2003) (citing State v. Davis, 61 P.3d 701, 710-11 (Kan. 2003)); see also State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (calling defendant's alibi witnesses a "pack of liars" is "plainly out of bounds").
While the prosecutor did not explicitly call defendant a liar one could infer he was comparing defendant's truthfulness to known liars. We do not approve of such an argument; however, we need not decide whether it was in violation of Graves, 668 N.W.2d at 876, as defendant has failed to show the required prejudice to prove ineffective assistance of counsel. In determining whether a defendant was prejudiced "we look to the totality of the evidence, the factual findings that would have been affected by counsel's errors, and whether the effect was pervasive, minimal, or isolated." Nguyen v. State, ___ N.W.2d ___, ___ (Iowa 2005). Upon weighing all of these factors we conclude that defendant has not sufficiently demonstrated he was prejudiced. Most important to the present case, the implications made by the prosecutor were not so pervasive that they would have inflamed the jury and interfered with the jury's factfinding mission. Id.; Graves, 668 N.W.2d at 883.
C. Exclusion of Defense Evidence
Defendant next alleges the district court erred in excluding Department of Human Services reports that defendant contended would show that Skylar's other caregiver's had a history of abusive behavior. Defendant's theory was Skylar's other caretakers, namely Skylar's mother, Maggie Tucker, and Skylar's maternal grandmother, Susan Tucker, could have been responsible for the fatal injuries suffered by Skylar. Defendant contended that Department of Human Services reports showing prior acts of abuse inflicted on children other than the victim in this case were relevant to defendant's theory. We review for abuse of discretion. State v. Wilson, 406 N.W.2d 442, 447 (Iowa 1987).
Defendant argues he was entitled to present evidence relevant to his theory of defense. State v. Nelson, 480 N.W.2d 900, 906 (Iowa Ct.App. 1991). However, "[e]vidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that such other person committed the offense." Wilson, 406 N.W.2d at 447; see also State v. Farmer, 492 N.W.2d 239, 242 (Iowa Ct.App. 1992). The evidence defendant sought to admit did not rise above the level of creating a mere suspicion that someone else committed the offense. Two of the reports were concluded as "unfounded" or "not confirmed" reports of child abuse and those reports do not rise above mere allegations. Additionally, the only "founded" case was far less egregious abuse than that incurred by Skylar, in that it involved a scratch to a pre-adolescent child. The district court did not abuse its discretion in denying admission of the evidence at issue.
D. Jury Instruction.
Defendant's next claim of error is that the trial court erred in instructing the jury. We review jury instructions to determine whether they correctly state the law and are supported by substantial evidence. State v. Predka, 555 N.W.2d 202, 204 (Iowa 1996). Over trial counsel's objection additional language was added to the jury instruction defining "malice," so that the instruction read as follows (emphasis is added to the additional language included by the district court):
"Malice" is a state of mind which leads one to intentionally do a wrongful act to the injury of another or in disregard of the rights of another out of actual hatred or with an evil or unlawful purpose. It may be established by evidence of actual hatred or by proof of a deliberate or fixed intent to do injury. It may be found from the acts and conduct of the defendant and the means used in doing the wrongful and injurious act. Malice requires only such deliberation that would make a person appreciate and understand the nature of the act and its consequences, as distinguished from an act done in the heat of passion. An infant child, however, cannot provoke such passion.
Defendant admits this is a correct statement of law, but argues that because passion unrelated to the acts of a child victim can still negate malice the jury instruction was improper. State v. Taylor, 452 N.W.2d 605, 606 (Iowa 1990) (stating the majority view is a child as young at eight months old cannot, as a matter of law, provoke a defendant in such a way as to negate malice). The jury instruction at issue does not preclude the jury from finding other causes provoked defendant to act in the heat of passion. The jury instruction correctly states the law. The district court did not commit error in instructing the jury.
E. Witness's Comment on Defendant's Credibility.
Defendant's final claim of error is the State elicited improper testimony that commented on defendant's credibility and the district court erred in overruling defendant's objection to the testimony. "The ultimate determination of the credibility or truthfulness of a witness is not `a fact in issue,' but a matter to be generally determined solely by the jury." State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986); State v. Maring, 619 N.W.2d 393, 395 (Iowa 2000) ("It is the function of the jury to sort out the evidence presented and place credibility where it belongs."). We review such evidentiary matters for abuse of discretion. Castaneda , 621 N.W.2d at 440.
The State claims defendant's general objection was insufficient to preserve error. State v. Buckner, 214 N.W.2d 164, 167-68 (Iowa 1974) ("When a general objection is made and its basis is not obvious, neither interrogating counsel nor the court should have to review the entire law of evidence in an effort to determine its specific ground.") However, it is clear to us from the transcript that defense counsel's objection was targeted at questions about whether the testifying officer found defendant's explanation of the events to be credible and why or why not the officer believed defendant's explanation was credible. Thus, error was preserved.
The testimony at issue was regarding an audio tape made by police of interviews conducted with defendant by Officer Jeffrey Duggan. In those tapes, which were introduced without objection by the defense, defendant stated he accidentally dropped his son and that he did not mean to drop him. Officer Duggan told defendant he believed him. On cross-examination of Officer Duggan, defense counsel elicited this exchange:
Q. At all times, [defendant] told you he didn't mean to drop Skylar, didn't he? A. Yes.
Q. And you said you believed him, didn't you?
MR. FERGUSON [the prosecutor]: Objection. Relevance.
THE COURT: Overruled. You may answer.
A. Yes, I did.
Then on redirect examination, the prosecutor questioned Officer Duggan as follows:
Q. When you said that you believed [defendant], did you? A. No.
Q. Why not?
MR. HOFFEY [defense counsel]: Objection, your honor. I would ask counsel to approach. (A bench conference was held at this time.)
THE COURT: The objection is overruled.
Our courts have repeatedly held it is improper for an expert witness to opine as to the truthfulness of a witness. Myers, 382 N.W.2d at 97 (Iowa 1986) ("[W]e conclude that expert opinion as to the truthfulness of a witness is not admissible."); see State v. Tracy, 482 N.W.2d 675 (Iowa 1992); Johnson v. State , 495 N.W.2d 528, 530 (Iowa Ct . App. 1992). However, the Myers line of cases is not applicable to the present case because it was not expert witness testimony, but lay witness testimony, that was elicited in the present case. Although, there are some jurisdictions that have expressly extended this rule to apply to all witnesses, not just experts, Iowa has not. See State v. Middleton, 657 P.2d 1215, 1221 (Or. 1983) ("We expressly hold that in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.").
Additionally, it was not error by the district court to allow the testimony at issue because the defense invited the testimony. The defense initially questioned Officer Duggan as to the statements he made in the interview with defendant concerning whether the officer said he believed defendant during the interview. "A party to a criminal proceeding will not be permitted to complain of error with respect to the admission or exclusion of evidence where . . . he himself has acquiesced in, committed, or invited the error." State v. Hinkle, 229 N.W.2d 744, 750 (Iowa 1975). Thus, the district court was within its discretion to allow the State to question Officer Duggan about whether he believed defendant's claims under the doctrine of curative admissibility. State v. Williams, 427 N.W.2d 469, 472 (Iowa 1998) ("[W]e have recognized . . . that when one party introduces inadmissible evidence, with or without objection, the trial court has discretion to allow the adversary to offer otherwise inadmissible evidence on the same subject when it is fairly responsive.")